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Experience with Native Title in Australia

Experience with Native Title in Australia

How has your experience with Native Title impacted you as a mediator?

 

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I think it has in that, I sit there thinking I wonder if this person of good will understands what this other person is actually trying to get across. I wonder if the failure to understand the historical context or the background to what the person is saying. I wonder if failure to understand that is what’s giving rise to this agitation between them. So that if for instance, if somebody says, and I’m thinking of a particular dispute and it was a business dispute [inaudible 00:45:33], a bank, “How old are you?” he said to the lawyer for the bank. And the lawyer for the bank looked nervous and said, “I’m 39” or 41 whatever he was. And he said, “Well, my friend, I was making” whatever it was he was manufacturing, “I was making widgets when you were in nappies. I built this business from nothing. And you guys are taking it away from me.”

 

Now that’s a commercial dispute, but you and I know as mediators, that it’s on for young and old as we say in Australia that’s it. The parties, very interested and very decent lawyer for the bank was shocked to be attacked and he went back into a little hole. And I said to him, “If you’ll permit me everyone, I think this is quite a useful place to start. I think something is being said here, which is about how it feels to build a business personally, which it might be useful for the bank to understand before we begin to talk about the denial of credit. Before we begin to talk the text of this dispute so far, just having a crack, which is why the bank is refusing to advance any further loans to this business and why the business faces bankruptcy, bankruptcy proceedings.”

 

And so I, and I said to the bank’s lawyers, “If it’s in order for you, I’ll invite Mr. So and So to tell us his story.” And they said, “Well, provided it doesn’t take all day, we’re happy to listen.” So I said to Mr. So and So, “Can you tell us in a nutshell?” And he said, “Sure I can.” And he started with I came to this country with nothing. And it’s exactly what you said to me in our preliminary, and it’s exactly what you said to me about your farmer in that mediation. The moment he had heard himself say how he was feeling, a) he settled down, so he was much easier to deal with and b) they started to understand why he had been so [obstreperous]. They were able to say, “Look, we didn’t know any of this.” And he said, “I didn’t expect you to. You couldn’t have known.” So they were both off the hook. “How could you have known this?”

 

And they said, were able to say, “We can see that this business is more than just a business to you. Our concerns are the following: we don’t see on your present terms of trade that you can trade out of this whole.” He said, “I’ve done it three times before should I tell you how?” And they said, “Yes.” Now I’ve seen the same pattern repeated in a mediation scheme in Australia which is called the Farm Debt Mediation Scheme and culturally speaking, Aled, there is nothing more different than an Australian country farmer, man, a person with an agricultural holding, even if it’s a family holding and in Australia don’t forget it could be the size of Luxembourg.

That person and a bank, those are people from two different countries. One of them comes from bank land. And one of them comes from hard slog land. And they simply don’t understand each others language. And my job is to be an interpreter every bit as much as if they were speaking German and English.

About the mediator

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Joanna has been working with groups as a mediator for over 20years in highly sensitive inter-racial and political settings all over the world. In 2001 she became chairman of LEADR, Australia’s largest non for profit dispute resolution organisation and in 2006 became a visiting fellow at LEADR. She was a member of the administrative appeals tribunal for 10 years and later a member of the National Native Title Tribunal where she mediated land cla... View Mediator